NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0790-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FEDNER PIERRE-LOUIS,
Defendant-Appellant.
_______________________________
Submitted April 4, 2017 – Decided September 6, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 02-
10-1296.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Fedner Pierre-Louis appeals from a July 2, 2015
order denying his petition for post-conviction relief (PCR)
following an evidentiary hearing. On appeal, defendant raises the
following single-point argument:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE DEFENDANT
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
THAT TRIAL COUNSEL'S DECISION NOT TO PRESENT
AN ALIBI DEFENSE WAS INEFFECTIVE ASSISTANCE
OF COUNSEL.
Defendant presents the following additional point in a pro se
supplemental brief:
THE POST CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT POST CONVICTION RELIEF
BASED UPON TRIAL COUNSEL'S FAILURE TO PROVIDE
ADEQUATE LEGAL REPRESENTATION TO DEFEENDANT
REGARDING WHETHER TO CALL ALIBI WITNESSES TO
TESTIFY AT TRIAL, SINCE ITS FACTUAL FINDINGS
WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE
EVIDENCE ARISING OUT OF THE REMAND EVIDENTARY
HEARING AND THEREFORE, ARE NOT ENTITLED TO
DEFERENCE ON APPEAL.
For the reasons that follow, we affirm.
We glean the following facts and procedural history from the
record. On March 1, 2002, Dr. Jeffrey Perchick was robbed and
shot in a hotel parking lot at Newark Liberty International
Airport. He died from his injuries. On December 10, 2004,
defendant was found guilty by a jury of first-degree aggravated
manslaughter of Dr. Perchick, N.J.S.A. 2C:11-4(a)(1), as a lesser-
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included offense of knowing and purposeful murder; first-degree
robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A.
2C:11-3(a)(3); third-degree unlawful possession of a firearm,
N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm for
an unlawful purpose, N.J.S.A. 2C:39-4(a). After merger, defendant
was sentenced to a forty-five-year prison term with an eighty-five
percent period of parole ineligibility pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7.2, for felony murder. In addition,
a consecutive five-year term for unlawful possession of a firearm
was imposed.
On direct appeal, we affirmed defendant's conviction, but
remanded for resentencing because the sentence for unlawful
possession of a firearm exceeded "the now defunct presumptive term
of four years." State v. Pierre-Louis, No. 2950-05 (App. Div.
April 13, 2007) (slip op. at 15). The Supreme Court denied
certification. State v. Pierre-Louis, 192 N.J. 71 (2007).
Defendant subsequently filed a PCR petition alleging his two
trial counsel were ineffective for failure to conduct an adequate
investigation, failure to serve a notice of alibi, Rule 3:12-2,
and failure to assert an alibi defense. Following an evidentiary
hearing, the PCR judge granted defendant relief. However, the
judge granted the State's motion for reconsideration based upon
newly discovered evidence, and after a second evidentiary hearing
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reversed its prior ruling and reinstated defendant's conviction.
We affirmed the denial of PCR. State v. Pierre-Louis, No. A-0669-
09 (App. Div. Aug. 20, 2012), certif. granted, 216 N.J. 577 (2014).
The Supreme Court reversed and remanded for a third evidentiary
hearing. State v. Pierre-Louis, 216 N.J. 577, 579-80 (2014). The
Court stated:
At the [remand] hearing, the parties should
present live testimony of the witnesses they
intend to rely on so that the court can make
credibility findings and draw legal
conclusions as to both prongs of the
Strickland/Fritz1 test. The court may invite
the parties to submit proposed findings of
fact after the presentation of evidence. We
offer no opinion as to the appropriate outcome
of the hearing.
[Id. at 580].
On remand, Judge Joseph P. Donohue, who did not conduct the
initial PCR proceedings,2 conducted an evidentiary hearing
regarding defendant's claim that trial counsel failed to present
his alibi defense that was he was home when Dr. Perchick was
murdered. Ibid. After the three-day hearing, Judge Donohue issued
1
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984), adopted by New Jersey in State
v. Fritz, 105 N.J. 42, 58 (1987)).
2
The Court held due to "the history of this case and the prior
rulings entered in connection with the PCR petition, we direct,
in an abundance of caution, that a different judge be assigned to
conduct the new evidentiary hearing." Pierre-Louis, supra, 216
N.J. at 580.
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a thorough and well-reasoned written decision denying PCR because
defendant did not satisfy the two-prong Strickland-Fritz3
ineffective assistance of counsel standard, which requires a
showing of the particular manner in which counsel's performance
was deficient and that the deficiency prejudiced his right to a
fair trial.
Judge Donohue found that the testimony provided by defendant
and his three witnesses, his father, sister, and a friend, was not
believable. He noted that in December 2002, before defendant
received the discovery from the State, defendant advised his first
counsel to present an alibi defense that he was in school when the
murder occurred. Defendant's alibi changed in June 2006, a year
after he received the discovery. Since his school classes were
over at 9:30 p.m., defendant told his second trial counsel that
he was home playing videogames with friends when the murder
occurred. The judge also pointed out that despite giving three
statements to police shortly following the murder in 2002, it was
not until June 2006 that defendant mentioned the videogames alibi.
The judge further noted that defendant's father and sister
did not give formal statements supporting his videogame alibi
3
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.
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until August 2008, and that his friend also waited years to give
an alibi statement for defendant, but could not recall to whom he
gave the statement. In sum, the judge found defendant and his
witnesses to be vague and evasive.
On the other hand, Judge Donohue found the State's witnesses,
defendant's two counsel and the Office of Public Defender
investigator, were credible and not "deceitful or disingenuous,"
and that a more than adequate defense investigation was conducted.
Before discovery was provided to the defense, defendant's first
counsel had the investigator speak with defendant and obtain his
school records, which indicated that defendant was absent the day
of the murder. The investigator also spoke to two of defendant's
teachers and several of his friends, who stated they were in school
with defendant from 3:00 p.m. to 9:00 p.m. the day of the murder.
After the second defense counsel took over, he decided not to
pursue the school alibi because the murder occurred around 10:15
p.m., forty-five minutes after defendant's last class. Counsel
then focused his investigation on the strength of defendant's
newly raised videogame alibi.
After meeting defendant's father and sister, counsel
determined they lacked credibility and would not be good witnesses.
At a pre-trial N.J.R.E. 404(b) hearing regarding defendant's
alleged possession of the murder weapon, counsel subpoenaed
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defendant's friends who were allegedly playing videogames with him
when the murder occurred. Counsel concluded they gave "angry,
inconsistent, and unbelievable" testimony and would not be good
alibi witnesses. Defendant's friend, who Judge Donohue noted was
not credible at the PCR evidentiary hearing, did not testify at
the 404(b) hearing. Importantly, the second defense counsel
testified that defendant agreed with his trial strategy not to
present the alibi defense because his friends and family would not
be good witnesses. Hence, counsel pursued the strategy of third
party guilt and the State's inability to prove defendant's guilt
beyond a reasonable doubt.
Applying his factual findings, Judge Donohue reasoned that
defendant failed to demonstrate that his counsel were ineffective
as required by the first prong of Strickland/Fritz test. The
judge determined that there was no "lack of investigation or
preparation" and counsel provided "sound legal strategy [] not
[to] put forward an alibi defense." As for the test's second
prong, the judge found there was no prejudice to defendant by not
presenting the alibi defense because his family and friends did
not provide credible testimony to support an alibi, and his
friends' 404(b) testimony linked him to the murder weapon. This
appeal followed.
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Where, as here, the judge conducts an evidentiary hearing,
we must uphold the judge's factual findings, "so long as those
findings are supported by sufficient credible evidence in the
record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting
State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer
to a trial judge's findings that are "substantially influenced by
[the trial judge's] opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot
enjoy." Ibid. (alteration in original) (quoting Robinson, supra,
200 N.J. at 15). We owe particular deference to the trial judge's
credibility determinations. See State v. Locurto, 157 N.J. 463,
470-71 (1999).
A defense attorney's trial strategy is generally not second-
guessed in a PCR proceeding. State v. Gary, 229 N.J. Super. 102,
115-16 (App. Div. 1988). To the contrary, trial counsel's informed
strategic decisions demand our heightened deference, and "are
virtually unchallengeable." Strickland, supra, 466 U.S. at 690,
104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
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expressed by Judge Donohue in his thorough and well-reasoned
written decision.
Affirmed.
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